Summary: Secondary Victims

Cases that involve pure psychiatric harm are divided into two separate categories, those which involve primary victims and those which involve secondary victims. The current position in such cases is that policy based restrictions are applied to claims made by secondary victims which can be avoided by primary victims. Consequently, the courts apply different tests in establishing a duty of care depending on whether the claim emanates from a primary or a secondary victim. There is a major debate as to whether it is desirable to apply such a distinction.

In general, psychiatric harm claims are made as a result of a catastrophic incident. Those classed as primary victims are claimants who's psychiatric injury was caused as a result of being
In secondary victim cases for example the claimant must demonstrate that the psychiatric harm that they are suffering has been brought about by a sudden shocking event. It is, therefore, not enough that the claimant merely has knowledge of a distressing event having taken place in order to recover. This control device, therefore, takes in to account the proximity of the secondary victim to the event or it's immediate aftermath. Primary victims, however, because of their proximity to the event can recover even if they suffer no physical harm. Page v Smith [1996] AC 155 in which a moderate motor accident which caused no physical injuries to the claimant but in which the claimant succeeded to recover for the worsening of a pre-existing condition resulting from
2014. p. 319). This case relates to the Hillsborough disaster which occurred in 1989 and was the result of negligent crowd control on the part of South Yorkshire Police. The litigants were classed as secondary victims as they were not in the area of immediate danger and so, therefore, did not meet the proximity criteria. Identifying the bodies of deceased family members some eight hours after the disaster was not considered to be close enough in terms of proximity time and the litigants were not regarded as being exposed to the immediate aftermath. Almost all of the relatives of those killed or injured failed in their claims for psychiatric harm. In stark contrast to this, the majority of claims that were made by police officers who attended the scene were successful. Unfortunately, these cases remain the to be the current leading authority where secondary victims who are related to primary victims are concerned.

The Law Commission states that the law relating to psychiatric harm is unsatisfactory and acknowledges that the present position produces arbitrary results. Hence, recommendations for the removal of some restrictions have been made. In summary, it has been suggested that the requirements of proximity, shock and that the harm should not be caused by the death, injury